"Hideous Company Sends Boing-Boing Pre-Emptive Nastygram"

by Lee Gesmer on August 7, 2006

One of the risks of sending a legal demand letter to someone in the Internet age is that they will post it on the web and ridicule you. That’s what happened when the Baker & McKenzie law firm sent the very popular web site Boing Boing a letter warning it not to broadcast the World Cup competition, and containing the ominous threat that it would have its “agents actively monitor your website and others to identify unlawful activity.” Boing Boing published the letter here. (The letter is an image, so you may have to print it to read it).

Is a preemptive strike like this legally effective? Almost certainly it is not, except as a warning to the web site owner itself not to publish video or audio from the Cup. However, no sane, established web site owner would do so even without such a warning, since the site owner would risk significant damages (and particularly “statutory” damages – aka punitive damages) of up to $150,000 per infringement ). The far greater likelihood is that a third party will publish the audio or video (on a video site such as YouTube.com, for example, where videos of the Cup continue to be rampant), and that it was publications of this nature that Baker & McKenzie was targeting.

However, the owners of the World Cup broadcast rights must give notice after the fact under the strict procedures described in the DMCA (at least in the U.S., where Boing Boing is based). A preemptive, “before the fact” letter gives the copyright owner no greater rights than if it had not sent it at all. The owner of the Cup broadcast rights would still have to go through the “after the fact” notice and “take down” procedures mandated by the DMCA.

Back to my original point, when you send these demand letters (which by their nature often are extreme examples of “lawyer-speak”), you do risk public ridicule on the Web, and people will often try very hard to effect this. One of my all-time favorite examples of this is “The Rocket Formerly Known as Black,” which is quite funny, and seems to have taken on a life of its own.

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